Citation Nr: 0019467
Decision Date: 07/25/00 Archive Date: 07/31/00
DOCKET NO. 98-10 580A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
psychiatric disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The Veteran-Appellant and his mother
ATTORNEY FOR THE BOARD
C. Trueba-Sessing, Associate Counsel
INTRODUCTION
The case comes before the Board of Veterans' Appeals (Board)
on appeal from a February 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Lincoln, Nebraska, which denied the benefits sought on
appeal. The veteran served on active service from June 1980
to June 1984.
The Board notes that, in the July 1998 substantive appeal,
the veteran requested an appeal hearing before a traveling
member of the Board. However, the record contains a June
2000 statement indicating that he no longer wished to have
such hearing. Therefore, pursuant to 38 C.F.R. § 20.704(e)
(1999), the veteran's July 1998 hearing request is considered
withdrawn.
FINDINGS OF FACT
1. In a February 1985 rating decision, the RO denied the
veteran's claim of service connection for a nervous
condition; in March 1985, the veteran was notified of that
decision and his appellate rights, but did not enter notice
of disagreement within one year of such notification of that
decision.
2. Additional evidence submitted since the RO's February
1985 rating decision bears directly and substantially on the
issue under consideration, and is by itself, or in
conjunction with evidence previously submitted, so
significant that it must be considered in order to fairly
decide the merits of the veteran's claim for service
connection for a psychiatric disorder.
3. The veteran has submitted medical evidence that he has a
psychiatric disorder other than personality disorder which
pre-existed service and was possibly aggravated by service.
CONCLUSIONS OF LAW
1. The February 1985 rating decision, which denied
entitlement to service connection for a nervous condition,
became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§
3.160(d), 20.302, 20.1103 (1999).
2. The evidence received since the RO's February 1985 rating
decision is new and material, and the veteran's claim for
service connection for a psychiatric disorder has been
reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R.
§ 3.156(a) (1999).
3. The veteran's claim for service connection for a
psychiatric disorder is well grounded. 38 U.S.C.A. §§ 1110,
5107 (West 1991); 38 C.F.R. § 3.303(a) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The law grants a period of one year from the date of the
notice of the result of the initial determination for the
filing of a notice of disagreement; otherwise, that decision
becomes final and is not subject to revision in the absence
of new and material evidence or clear and unmistakable error.
See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104,
3.105(a) (1999). However, if new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the claim will be reopened and reviewed. See 38
U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (1999).
In this case, in a February 1985 rating decision, the veteran
was denied service connection for a psychiatric disorder on
the grounds that the claimed condition was a constitutional
or developmental abnormality, which was not ratable for VA
purposes. At that time, the evidence showed that the
veteran's discharge diagnosis from in-service hospitalization
in May 1984 was personality disorder with passive-aggressive
immature and explosive features. In March 1985, the veteran
was notified of that decision and his appellate rights, but
did not enter notice of disagreement within one year of such
notification of that decision. Therefore, the February 1885
rating decision became final. 38 U.S.C.A. §§ 5108, 7105;
38 C.F.R. § 3.156(a).
In July 1998, the veteran attempted to reopen his claim for
service connection for a psychiatric disorder. Because the
February 1985 rating decision is deemed to be a final
disallowance, the veteran's claim may only be reopened if new
and material evidence is submitted. See 38 U.S.C.A. §§ 5108,
7105; 38 C.F.R. § 3.156(a).
Consideration of whether new and material evidence has been
submitted is required before the merits of a claim can be
considered. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
New evidence will be presumed credible solely for the purpose
of determining whether the claim has been reopened. Justus
v. Principi, 3 Vet. App. 510, 513 (1992).
In the recent case of Winters v. West, 12 Vet. App. 203
(1999) (en banc), the United States Court of Appeals for
Veterans Claims (the Court), citing Elkins v. West,
12 Vet. App. 209 (1999) (en banc), held that the two-step
process set out in Manio v. Derwinski, 1 Vet. App. 140, 145
(1991), for reopening claims became a three-step process
under the Federal Circuit's holding in Hodge v. West, 155
F.3d 1356 (Fed. Cir. 1998). The Secretary must first
determine whether new and material evidence has been
presented under 38 C.F.R. § 3.156(a). Second, if new and
material evidence has been presented, immediately upon
reopening the Secretary must determine whether, based upon
all the evidence and presuming its credibility, the claim as
reopened is well grounded pursuant to 38 U.S.C. § 5107(a).
Third, if the claim is well grounded, the Secretary may
evaluate the merits after ensuring the duty to assist under
38 U.S.C. § 5107(b) has been fulfilled.
Upon a reopening of the claim on appeal, the Board must turn
to the "well grounded" analysis required by Winters, Elkins
and Hodge. In this regard, the veteran must satisfy three
elements for a claim of service connection to be well
grounded. First, there must be competent evidence of a
current disability. Second, there must be medical, or in
certain circumstances, lay evidence of in-service occurrence
or aggravation of a disease or injury. Lastly, there must be
medical evidence of a nexus or relationship between the in-
service injury or disease and the current disability. See
Epps v. Brown, 9 Vet. App. 341 (1996).
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999).
In this regard, basic entitlement to disability compensation
may be established for a disability resulting from personal
injury suffered or disease contracted in the line of duty, or
for aggravation of a preexisting injury suffered or disease
contracted in the line of duty, but no compensation shall be
paid if the disability is a result of the person's own
willful misconduct or abuse of alcohol or drugs. See 38
U.S.C.A. § 1131.
Service connection may also be allowed on a presumptive basis
for certain chronic diseases, such as psychoses, if
manifested to a compensable degree within a one year period
of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113
(West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). However, a
personality disorder is not considered a disability for VA
compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127
(1999). The only exception to this general rule is when a
personality disorder is considered secondary to a service-
connected disability as provided in 38 C.F.R. § 3.310(a)
(1999).
In addition, if a condition noted during service is not shown
to be chronic, then generally a showing of continuity of
symptomatology after service is required for service
connection. 38 C.F.R. § 3.303(b) (1999). The chronicity
provisions of 38 C.F.R. § 3.303(b) are applicable where
evidence, regardless of its date, shows that a veteran had a
chronic condition in service, or during an applicable
presumption period, and still has such condition. Such
evidence must be medical unless it relates to a condition as
to which, under the Court's case law, lay observation is
competent. If the chronicity provision is not applicable, a
claim may still be well grounded on the basis of 38 C.F.R.
§ 3.303(b) if the condition is observed during service or
during any applicable presumption period, if continuity of
symptomatology is demonstrated thereafter, and if competent
evidence relates the present condition to that
symptomatology. Savage v. Gober, 10 Vet. App. 488, 498
(1997). Thus, the claimant is required to establish a nexus
between the claimed disability and his/her active military
service, even if a continuity of symptomatology has been
established under 38 C.F.R. § 3.303(b). See Clyburn v. West,
12 Vet. App. 296 (1999) (distinguishing the factual
circumstances in Falzone v. Brown, 8 Vet. App. 398 (1995),
and Hampton v. Gober, 10 Vet. App. 481 (1997)).
In determining whether a claim is well grounded, the
truthfulness of the evidence is presumed. See Robinette v.
Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown,
5 Vet. App. 19, 21 (1993).
In this case, since the February 1985 final adjudication, the
additional evidence in the files which is related to this
issue includes medical records from the University of
Nebraska-Lincoln Counseling Center dated from August 1987 to
November 1990 describing the treatment the veteran received
for marital problems and anxiety. In addition, records from
the Lancaster County Crisis Center dated from January 1991 to
February 1991 note the veteran did not reveal evidence of
psychotic disorder, but was clearly an angry, labile,
dependent and accusatory person who was highly intolerant of
frustration. The primary Axis I diagnostic impression upon
admission was anxiety disorder not otherwise specified, with
an Axis II diagnosis of cyclothymic features. The January
1991 discharge diagnosis was an Axis II mixed, primarily
borderline, personality disorder.
Medical records from the Omaha VA Medical Center (VAMC) dated
from 1991 to 1999 describe the treatment the veteran has
received over time for various health problems, including
psychiatric symptomatology. Specifically, the Board notes
that these records contain a hospitalization summary for
January 1991 to February 1991 indicating the veteran's
discharge diagnoses were adjustment disorder with mixed mood
and mixed personality disorder.
A March 1996 VA examination report indicates the veteran had
a history of a head injury at the age of 7 incurred in a car
accident, which the examiner found was likely to have caused
some organic deficit, and which was compounded by the
veteran's reported fist fights while in the service. A March
1996 statement from J.E., M.D., notes the veteran was
oriented in all spheres, had intact memory, and did not have
illusion, delusions or hallucinations; however, he had
depressed mood, anxious affect and impaired insight into
situations. Dr. J.E. diagnosed the veteran with adjustment
disorder.
The record also reflects additional evidence in the form of
lay statements and testimony. The veteran has submitted lay
statements from his mother, two aunts, and two brothers,
tending to show that the veteran was normal at service
entrance and the veteran's psychiatric problems were first
noticed after service. At a personal hearing in April 1998,
the veteran and his mother also offered testimony regarding
how the veteran was normal prior to service, his in-service
experiences, and symptomatology and treatment the veteran has
experienced or received since then.
After a review of the additional evidence submitted
subsequent to the February 1985 rating decision, the Board
finds that the March 1996 VA medical opinion - that it was
likely that the veteran's residuals of a head injury (organic
deficit problems) resulting from a car accident at age 7
"became compounded by the fist fights while in the service"
- coupled with the lay evidence regarding the veteran's pre-
service and post-service symptomatology, is new evidence
which is so significant that it must be considered in order
to fairly decide the merits of the veteran's claim for
service connection for a psychiatric disorder. As noted in
Hodge, "the ability of the Board to render a fair, or
apparently fair, decision may depend on the veteran's ability
to ensure the Board has all potentially relevant evidence
before it," and the Federal Circuit stated further, that some
new evidence may "contribute to a more complete picture of
the circumstances surrounding the origin of the veteran's
injury or disability, even where it will not eventually
convince the Board to alter its rating decision." Hodge, 155
F.3d at 1363. As such, this evidence is "new and material"
as contemplated by law, and thus, provides a basis upon which
to reopen the veteran's claim for service connection for a
psychiatric disorder. See 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156.
In addition, the Board finds that the veteran's claim for
service connection is well grounded. See 38 U.S.C.A. § 1110,
5107(a); 38 C.F.R. § 3.303. The March 1996 VA medical
opinion reflects a diagnosis of pre-existing disability other
than personality disorder, and is sufficient to constitute an
opinion that it is possible that such pre-existing disability
was aggravated by service (fist fights in service).
ORDER
New and material evidence having been presented, the
veteran's claim for service connection for a psychiatric
disorder is reopened.
The veteran's claim for service connection for a psychiatric
disorder is well grounded; to this extent only, the appeal is
granted.
REMAND
Given that the veteran has presented a well-grounded claim
for service connection for a psychiatric disorder, the Board
observes that VA has a further obligation to assist him in
the development of evidence to support his claim. See
38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d
1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (1997).
Therefore, this case is REMANDED for the following action:
1. The RO should afford the veteran a VA
psychiatric examination to determine the
etiology, nature, and extent of current
psychiatric disorder. If there are
different psychiatric disorders, the VA
psychiatrist should reconcile the
diagnoses, and specify which symptoms are
associated with each disorder. If
certain symptomatology cannot be
disassociated from one disorder or
another, it should be specified. The
entire claims folder, and a copy of this
remand must be made available to and
reviewed by the examiner prior to the
examinations. Any special studies or
tests, including psychological testing,
should be accomplished. The examiner
should express an opinion as to the
etiology of any psychiatric disorder
diagnosed, and the likely onset of any
psychiatric disorders found (including
the history of head trauma at age 7 and
fist fights in service), including
whether any pre-existing psychiatric
disorder was aggravated by fist fights in
service. The examiner is specifically
requested to offer an opinion as to
whether it is at least as likely as not
that any diagnosed psychiatric disorder
found to have pre-existed service
(including organic brain syndrome and
bipolar disorder) was aggravated by
(i.e., increased in severity beyond a
normal progression during) service.
2. Following completion of the above
actions, the RO must review the claims
folder and ensure that all of the
foregoing development has been conducted
and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
If an examination report is inadequate or
fails to provide the requested medical
etiology opinion, or provide reasons as
to why such opinion is not possible, the
examination report should be returned to
the VA examiner for correction of the
deficiency.
3. The RO should then adjudicate on the
merits of the veteran's claim for service
connection for a psychiatric disorder on
the basis of all the available evidence.
If the benefit sought is not granted, the
veteran and his representative should be
furnished with a supplemental statement
of the case wherein all pertinent
statutes and regulations are fully set
forth. The veteran should be afforded an
opportunity to respond before the case is
returned to the Board for further action.
The purpose of this REMAND is to obtain additional
information and development, and to ensure that all due
process requirements have been met. The Board does not
intimate any opinion as to the merits of the case, either
favorable or unfavorable, at this time. The veteran is free
to submit additional evidence he desires to have considered
in connection with his current appeal. See Kutscherousky v.
West,
12 Vet. App. 369 (1999). No action is required of the
veteran until he is notified.
JEFFREY D. PARKER
Acting Member, Board of Veterans' Appeals